Joe Jackson & Maeve McLoughlin, EndsReport, November 20, 2008
Nearly a quarter century after the worst industrial disaster in history, the former Union Carbide plant at Bhopal in India is still causing suffering by polluting a drinking water aquifer. Environmental consultants Joe Jackson and Maeve McLoughlin argue that a comprehensive clean-up is long overdue
In the early hours of 3 December 1984, the world’s worst industrial disaster occurred at Bhopal, India. An accidental release of 40 tonnes of methyl isocyanate gas from a Union Carbide pesticide production factory was carried by wind to the surrounding densely populated slums.
The results were catastrophic. An estimated 8,000 people died that night or in the days soon afterwards, rising to more than 15,000 in the following years. More than 600,000 people have been affected by exposure to the deadly gas.
The disaster at the facility in the central Indian state of Madhya Pradesh is held up as an example of terrible industrial health and safety failings and corporate irresponsibility.
While Union Carbide agreed a financial settlement with the Indian Government in 1989 in relation to the gas release, what is less known is that the contamination continues to pollute the local environment and cause acute and chronic illness to the surrounding population.
Once a proud, modern facility with neatly manicured grounds, today the site is bounded by a high concrete wall hiding about 32 hectares of overgrown wasteland, crumbling buildings and corroding tanks, towers and pipework.
People still live next to the factory wall in shanty-type accommodation known as ‘bustees’, just as they were on the night of the disaster. The residents are poor and most rely on community hand pumps dug by government agencies for water.
The factory shut down after the disaster. Ten years later, Union Carbide sold its entire stake in its Indian subsidiary, Union Carbide India Ltd, to an Indian company, Eveready Industries. Then, in 1998, the lease for the land was handed back to the Madhya Pradesh state government without completing any adequate remediation.
Today the site lies derelict and still unremediated, despite the tanks and vats being emptied in 1989. During its 15 years of operation, production by-products were buried on-site and the industrial effluent pumped to the factory’s solar evaporation ponds (SEPs); a series of three poorly lined settling lagoons known to have leaked frequently.
The pollutant linkages are apparent, drinking water supplies are often discoloured and have a strong chemical malodour and taste. In December 2002, a report for the Fact Finding Mission on Bhopal by Delhi-based environmental organisation Shristi found “the groundwater, vegetables and even breast milk is contaminated to various degrees by heavy metals like nickel, chromium, mercury and lead, volatile organic compounds like dichlorobenzene and halo-organics like dichloromethane and chloroform”.
Infants born with congenital defects and cerebral palsy have been observed in high numbers in affected communities. A small-scale epidemiological survey done in 2004 by the Madhya Pradesh Government’s Centre for Rehabilitation Studies found that residents of communities affected by groundwater contamination have higher rate of skin, respiratory and gastrointestinal diseases.
The operational standards designed for the Bhopal plant were not particularly robust, even for the 1970s. At the same time as the plant was commissioned, a sister plant was opened in West Virginia, US. There were several differences, the most significant being the mechanisms for waste effluent treatment and disposal. In West Virginia, waste effluent would pass through a treatment plant before being discharged into the Kanawha River. At Bhopal, all raw effluent was discharged directly to the on-site SEPs for containment. In a Union Carbide Corporation internal telex on 25 March 1982, the SEPs were reported to have ‘almost emptied’ through lining leakage.
Last year one of us was given a tour of the site by a former senior process engineer. The facility looked as derelict as one would expect, given it has been left to the elements for more than two decades. Despite the presence of full-time security guards, the perimeter fence had been broken in places. A woman was grazing her goats on the overgrown grounds and some shallow hand excavations were identified across the site, where locals had reportedly been digging through buried waste products in the hope of finding suitable building materials for huts.
A recently secured warehouse contained sacks of raw process chemicals and pesticides, including Sevin which the plant was commissioned to produce. The site’s contaminated status appeared obvious; the exposed soil horizon showed bags of waste and powdered pesticides. Organic odours quickly induced headaches and liquid mercury was seen on the ground. It was said that during production, on-site burial of waste and excess stock was common – it certainly looked as if this were so.
The site has been subject to some limited investigations, but the findings are not all publicly available. Between 1982 and 2004, various agencies including the India’s National Environmental Engineering Research Institute (NEERI), Arthur D Little Ltd (appointed by Union Carbide), Madhya Pradesh Public Health Department, Madhya Pradesh Pollution Control Board and Greenpeace carried out assessments.
The studies variously included soil and water sampling of solid wastes stored on-site, known landfilled areas, SEPs and local abstraction boreholes within two kilometres of the factory site. From a review of available information, the assessment methodologies did not constitute formal phased approaches in accordance with international good practice. Specifically there was no desk study which allowed a conceptual site model to be formed, and no strategic sampling and analysis plan was developed which would have provided a rationale for sample locations and selection of suitable analytical suites.
No comprehensive geological or hydrogeological profiling of the site or surrounding area were developed as part of these assessments, consequently no qualitative or quantitative risk assessments can be considered accurate. Much of the chemical testing was generic and non-specific, with samples being screened for total organic content or total polyaromatic hydrocarbons, the results of which, while implying the magnitude of contamination, mask the specific nature of the contaminants.
The scale of these assessments is inadequate. For example the 1997 NEERI Assessment of Contaminated Areas due to Past Waste Practices, included analysis of only 17 groundwater samples. In a review of this assessment, Arthur D Little Ltd noted the lack of site-specific data and uncertainty over site characterisation including key parameters such as infiltration rates and contaminant travel time.
However, despite the limited number of samples analysed, the majority indicate significant contaminant concentrations. Soil samples showed organic contaminants of 10-100% content, meaning in parts there were just pure contaminants an no soil matrix. Chemicals associated with pesticides produced at the plant including naphthol, naphthalene, carbaryl (Sevin) and numerous other chlorinated hydrocarbons were found.
Groundwater samples contained similar contaminants (including lindane, aldrin, naphthol and carbaryl) and many other semi-volatile organic compounds, heavy metals and inorganic contaminants. In 1999 Greenpeace International published a report, The Bhopal Legacy, researched with technical support from the University of Exeter. This provided the first public and scientifically reliable evidence of massive and spreading groundwater contamination emanating from the Bhopal plant.
Greenpeace collected 33 soil samples and 22 groundwater samples from in and around the factory site and found very high concentrations of carcinogenic chemicals and heavy metals. Twelve volatile organic compounds, most greatly exceeding World Health Organization and US Environmental Protection Agency standard limits, were found to have leached into local tube wells.
Limited formal health surveillance has been carried out in relation to the impact of this contamination on local people. The population of Annu Nagar, a bustee next to the factory site, was surveyed in 2003 by the Sambhavna Clinic. Just over 90% of the population used drinking water from contaminated hand pumps and every second person was suffering from a multitude of symptoms including, anaemia, abdominal pain, giddiness, chest pains, headaches, fevers, vomiting and diminished vision.
The full effects may be much worse and more extensive than those revealed in this survey. The groundwater contaminants include some that are toxic and potentially carcinogenic, mutagenic and capable of disrupting the development of foetuses.
The factory site was let to Union Carbide by Madhya Pradesh state on a long-term lease in 1969. The lease agreement stipulated the site should be handed back in ‘habitable and usable condition’ so in 1989, five years after the disaster, the company initiated a “site assets recovery and rehabilitation project”.
The precursor to this project was an assessment of the contamination and risks undertaken by NEERI, who, due to the lack of local experience of this type of project, were supervised by Union Carbide’s own consultants Arthur D Little Ltd. The project focused on assets recovery: ‘rehabilitation’ comprised infilling of the SEPs and some limited bulk chemical removal.
Then in 1994 Union Carbide sold its 51% stake in Union Carbide India Limited to an Indian company, Eveready Industries. In 1998, in what appears to be a bureaucratic blunder, the surrender of the lease was mistakenly accepted by a licensing branch of the local Madhya Pradesh State authorities, even while the State Pollution Control Board was supervising limited ‘clean-up’.
The pollution control board wrote to the former site manager to demand the company return to finish clean-up work, but he refused, citing hand-over of the lease. If this lease surrender were contrast to a similar scenario in the UK under part IIA of the Environmental Protection Act (1990), it is inconceivable the site’s contamination status would have not been checked.
The liability for Bhopal’s ongoing contamination could be considered to lie with the original polluter, Union Carbide, the owner of the site, the Indian Government, or both. Union Carbide is now a fully owned subsidiary of the Dow Chemical Company. Dow, in turn, claims no responsibility to remediate the site. On their dedicated website UCC (Dow) claims: “All claims arising out of the release were settled 18 years ago at the explicit direction of and with the approval of the Supreme Court of India.” 1 Furthermore all enquiries regarding the current site status are directed to the Madhya Pradesh Government which took responsibility for the site in 1998. Dow’s official stance is that they have no responsibility to enact any further remediation.2 The Indian Government does not accept this assertion by Dow and until recently has been reluctant to accept any responsibility.
Numerous survivor and protest groups have been calling for the complete remediation of the site and provision of clean drinking water to people in the surrounding bustees. In the US in 2004, in a legal suit filed against Union Carbide by seven individual victims and five organisations the US Federal Court ruled that the company could be made to clean up the site.
A key stipulation of the ruling was that the Madhya Pradesh State and Indian national governments had to state they had no objection. This was finally confirmed on 23 June 2004, with the Indian authorities stressing Union Carbide’s responsibility under the ‘polluter pays’ principle.
However, Union Carbide appealed and the suit was dismissed in 2005. A sister suit by another victim, again filed in the US in 2007, is currently being adjudicated before the Second Circuit Court of Appeal. This second suit seeks damages for property loss and personal injury resulting from the contamination. A decision is expected imminently.
Meanwhile in India, a case in the Madhya Pradesh State High Court has brought a formal demand from the Indian Ministry of Chemicals and Fertilizers that Union Carbide and its successors pay about $22 million towards the cost of a thorough clean-up in lieu of a legal determination of liability. Earlier this year, the Indian Law Ministry gave the opinion that all of Union Carbide’s liabilities resulting from Bhopal had to be borne by Dow.
Despite the Indian view, the effectiveness of Indian legal rulings against Union Carbide are reflected in the outstanding extradition order for the company’s former chief executive Warren Anderson. He has been wanted in India on charges of culpable homicide in relation to the original disaster for nearly 24 years.
In 2004, Amnesty International released a report entitled Clouds of Injustice: Bhopal Disaster 20 Years On. Drawing attention to the continuing violation of human rights in Bhopal, the report quotes Judge Weeramantry, sitting in the International Court of Justice in The Hague: “The protection of the environment is… a vital part of contemporary human rights doctrine, for it is a sine qua nonfor numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”
Amnesty notes, “it is now a recurrent theme in environmental law that liability for environmental harm is channelled towards the private originator or polluter, sometimes on the basis of fault and in other cases on the basis of strict liability. Operators of hazardous facilities are held liable, in some cases by treaties imposing strict liability.”
Amnesty concludes by calling on Dow to promptly provide full reparations, restitution, compensation and rehabilitation for the continuing damage done to people’s health and the environment by the ongoing contamination of the site.
Proper investigation needed
The internationally accepted ‘polluter pays’ principle has not been directly applied in Bhopal due to the political and legal complexities and the absence of a suitable ground investigation. A robust, phased investigation would accurately define the conceptual site model and all viable pollutant linkages.
Specifically this would require identifying source terms (for example, contaminated soils at the site), pathways by which exposure or migration may occur (such as migration via groundwater beneath the site) and receptors (for example, the local population who are drinking the contaminated groundwater). And that, in turn, would prove the suspected linkages between the abandoned plant and the impacted water supplies. The level of information available to date is not sufficient to fully characterise the site or design a suitable remediation or risk management strategy.
The latest news from Bhopal is that a major US-based land remediation company Cherokee has again approached the Bhopalis to enact a charitable remediation effort. Cherokee cites purely altruistic reasons for this approach, pledging $1 million and free technical assistance to aid the site’s clean-up.
The company made this offer once before in 2006 and it included a lengthy technical site assessment specification written by consultants ERM. However, this document, in our view, does not provide a sound basis for remediation. Local campaigners have greeted Cherokee’s approaches with suspicion.
The Indian industrial giant Tata also offered to help by pledging money towards a cooperative clean-up effort. But this was on condition that Dow would be absolved of all environmental liability regarding the remediation.
The International Campaign for Justice in Bhopal is a coalition of survivor groups and non-profit organisations seeking to enforce the remediation of the site.3 One of the demands of a recent protest by the group – which included a 500-mile walk, a 78-day vigil and a fast in New Delhi outside the prime minister’s office – was the setting up of the Empowered Commission for Bhopal, specifically empowered to not only recommend government actions, but to unilaterally apply them.
On 8 August this year, in the face of the impasse over Bhopal liabilities, the Indian and Madhya Pradesh State governments committed one billion rupees (£13 million) to progress many issues including the remediation while the responsibility is apportioned. The government also confirmed rejection of Tata’s conditional offer of help.
The Indian agency whose inadequacies were revealed in prior assessments, NEERI, is being lined up to assess the current situation in the absence of credible alternative local agencies. Given the inexperience of Indian agencies, the possibility remains open for non-Indian environmental science professionals to assist the Commission’s work if it is to meet international standards.
On the disaster’s 24th anniversary, the environmental damage and human suffering at Bhopal go on. Regardless of the legal and political posturing, the fact remains that a huge tract of land is poisoning the local population and no sufficient ground investigation has been done to establish what is actually happening.
Whether it is the Indian Government’s inaction or irresponsibility of Dow, the result is an ongoing human tragedy out of place in an increasingly globalised and regulated world. Now it is up to the Empowered Commission to implement a badly needed remediation and simultaneously unravel the legal issues surrounding the disaster and ongoing environmental liability.
Local stakeholders, who have had to fight for every step towards progress, surely deserve the assessment and clean-up which eventually takes place at Bhopal to be completed to international standards. Our view is that it will be difficult for local campaigners and Indian authorities to be given this assurance without impartial, international technical support.
Joe Jackson is an associate director of Armac Environmental. Maeve McLoughlin is a freelance environmental consultant
1. www.bhopal.com (http://www.bhopal.com/)
Madhya Pradesh State Government (http://www.mp.gov.in/bgtrrdmp/default.htm)
International Campaign for Justice in Bhopal (https://www.bhopal.net/)
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